Court upholds Ute intake construction

A federal court of appeals in Denver has refused to reverse a decision giving the green light to construction of an intake at Ute Lake Reservoir, part of the Ute Lake Project plan to pipe drinking water to communities in Curry and Roosevelt counties.

The decision made Monday rejects the Village of Logan’s argument that allowing the intake would cause it and others in Quay County irreparable harm.

In their ruling, appeals court justices said stopping construction of the intake would, in fact, cause irreparable harm to the Ute Lake Project that 12 communities in Curry and Roosevelt are depending on as a future source of drinking water.

Logan sought an injunction in April 2012 to stop construction of the intake and demanding a federal environmental impact statement, a process that often takes months or years to complete. A federal judge in Albuquerque rejected Logan’s request and the village appealed to the U.S. 10th Circuit in Denver.

“We are very disappointed with the ruling and still thought we had a valid argument for the minimum pool level of 3,765 (feet),” said Larry Wallin, Village of Logan manager.

Wallin said the appeal asked the Eastern New Mexico Water Utility Authority be required to conduct an Environmental Impact Study versus the Environmental Assessment they completed when planning the project. He said there was no contest of the EA in the beginning due to the understanding that the Authority agreed on a minimum pool level of 3,765 feet.

The lake water level is what Logan and other Quay County entities have argued is the minimum pool level they need at Ute Lake Reservoir to maintain the ecosystem and to continue recreational use of the waters.

Logan also argued that failure to stop construction of the intake would result in “loss of revenue, aesthetic impairment, declining property values and business devaluation, and degradation of the fisheries population,” according to court records.

The appeals court justices, however, ruled that “the injuries Logan alleges as support for that assertion are inadequate to justify enjoining the Project...”

The justices noted best estimates for stopping construction and delaying the project would cost the water authority about $745,000 a month.

“Perhaps more worrisome,” the judges wrote, “is that stopping construction until after a trial would also extend the completion date of an already complex and time-consuming Project.”

The court went on to say that “given the real need for potable drinking water in eastern New Mexico, the fact that the Project will take years to build is all the more reason to keep construction at its pace.”

The court also said the greatest reason to deny Logan’s appeal was that stopping construction would be contrary to the public interest.

Wallin said any future legal action taken by Logan would first be discussed with their attorneys.

ENMWUA chair Gayla Brumfield said Monday that construction on the intake should be completed by the end of October. The next phase of the project is installing pipelines to supply water authority member communities, including Clovis and Portales.

Staff writer Thomas Garcia contributed to this story.